Former Bush administration officials have launched a behind-the-scenes campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.

Representatives for John C. Yoo and Jay S. Bybee, subjects of the ethics probe, have encouraged former Justice Department and White House officials to contact new officials at the department to point out the troubling precedent of imposing sanctions on legal advisers, said the sources, who spoke on the condition of anonymity because the process is not complete.

The effort began in recent weeks, the sources said, and it could not be determined how many former officials had reached out to their new counterparts.

A draft report of more than 200 pages, prepared in January before Bush’s departure, recommends disciplinary action, rather than criminal prosecution, by state bar associations against Yoo and Bybee, former attorneys in the department’s Office of Legal Counsel, for their work in preparing and signing the interrogation memos. State bar associations have the power to suspend a lawyer’s license to practice or impose other penalties.

The memos offered support for waterboarding, slamming prisoners against a flexible wall and other techniques that critics have likened to torture. The documents were drafted between 2002 and 2005.

The investigation, now in its fifth year, could shed new light on the origins of the memos. Investigators rely in part on e-mail exchanges among Justice Department lawyers and attorneys at the CIA who sought advice about the legality of interrogation practices since been abandoned by the Obama administration.

Two of the authors, Bybee, now a federal appeals court judge, and Yoo, now a law professor in California, had a Monday deadline to respond to investigators.

Miguel Estrada, an attorney for Yoo, said, “As a condition of permitting me to represent Professor Yoo in this matter, the Department of Justice required me to sign a confidentiality agreement. As a result of that agreement, there’s nothing I can say.”

Maureen Mahoney, an attorney for Bybee, also cited the confidentiality requirement in declining to comment.

The legal analysis on interrogation prepared by a third former chief of the Office of Legal Counsel, Steven G. Bradbury, also was a subject of the ethics probe. But in an early draft, investigators did not make disciplinary recommendations about Bradbury.

In a separate effort to counterbalance the draft report, Attorney General Michael B. Mukasey and Deputy Attorney General Mark R. Filip wrote a 14-page letter before they left office this year. They described the context surrounding the origins of the memos, written at a time when officials feared another terrorist strike on American soil.

Both Mukasey and Filip were dissatisfied with the quality of the legal analysis in the wide-ranging draft report, sources said. Among other things, the draft report cited passages from a 2004 CIA inspector general’s investigation and cast doubt on the effectiveness of the questioning techniques, which sources characterized as far afield from the narrow legal questions surrounding the lawyers’ activities. The letter from Mukasey and Filip has not been publicly released, but it may emerge when the investigative report is issued.

A person who has spoken with both Mukasey and Filip said yesterday that neither had been solicited to approach new department leaders about the ethics report.

Late Monday, Assistant Attorney General Ronald W. Weich wrote senior congressional Democrats to offer an update about the status of the ethics investigation, which is being conducted by the Justice Department’s Office of Professional Responsibility. Weich told Sens. Richard J. Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) that Attorney General Eric H. Holder Jr. and Deputy Attorney General David W. Ogden “will have access to whatever information they need to evaluate the final report and make determinations about appropriate next steps.”

Authorities did not signal in the letter when or in what form the report will be released. The biggest holdup had been that the content of the interrogation memos was classified, but the documents were released last month by the Justice Department. Sources said the highly anticipated report could emerge as soon as this summer.

Mary Patrice Brown, new chief of the Justice Department ethics office, told an audience of lawyers last night that her preference is toward “transparency” and releasing investigative reports on a case-by-case basis, depending on the “severity” of the misconduct and the public’s interest.

Any disciplinary findings about the former Justice lawyers could energize calls within Congress and among left-leaning interest groups for criminal prosecution of Bush administration officials who authorized the interrogations and for an independent congressional inquiry into the origins of the practices.

In an interview yesterday, Durbin said it was too early to call for a special prosecutor or another congressional probe.

But, he said, many important questions remained unanswered. “It’s a question of responsibility. In this chain of command, how far up did it go?”

New Arctic policy has big implications for agencies

Ten days before leaving office, President Bush issued a new Arctic region policy that acknowledges the security, economic and environmental implications of melting ice at the North Pole and sets the stage for increasing responsibilities at a number of agencies, including the departments of Defense, State, Homeland Security, Interior and Commerce.

Bush signed national security and homeland security presidential directives implementing the changes on Jan. 9.

“This has implications for all of the departments,” said Scott Borgerson, visiting fellow for ocean governance at the Council on Foreign Relations. The policy, which has been in the works for years, is overdue, he said.

The polar ice cap is shrinking at a much higher rate than scientists with the Intergovernmental Panel on Climate Change predicted just four years ago. The implications for security, trade, energy production and the environment are tremendous, Borgerson said. For example, melting ice is opening access to oil and gas deposits and creating shipping shortcuts between the Atlantic and Pacific Oceans.

The new policy states six objectives:

Meet national security and homeland security needs.

Protect the Arctic environment and conserve biological resources.

Ensure natural resource management and economic development are environmentally sustainable.

Strengthen international institutions among the eight Arctic nations.

Involve the Arctic’s indigenous communities in decisions.

Enhance scientific monitoring and research.

The policy states unequivocally that the United States will protect its interests in the region with or without allies. “These interests,” it declares, “include such matters as missile defense and early warning; deployment of sea and air systems for strategic sealift, strategic deterrence, maritime presence, and maritime security operations and ensuring freedom of navigation and overflight.”

The policy also notes, “Human activity in the Arctic region is increasing and is projected to increase further in coming years. This requires the United States to assert a more active and influential national presence to protect its Arctic interests and to project sea power throughout the region.”

Borgerson, who supports the overall policy, characterized this wording an unfortunate “poke in the eye” to Canada, which views much of the Northwest Passage as an internal waterway, not an international one. “There’s nothing really here that the Canadians didn’t already know,” regarding the U.S. position on the Arctic, he said, but saying it so bluntly creates diplomatic problems.

In her confirmation hearing Tuesday, Secretary of State designate Hillary Clinton said, “I believe that the issues of the Arctic are one of those long-term matters that will dramatically affect our commercial, our environmental, and our energy futures,” according to an account by KTUU television, the CBS affiliate in Anchorage.

Clinton told Sen. Lisa Murkowski, R-Alaska, that resolving boundary disputes with other nations was critical. “We’ve got to figure out where our boundaries are if people start drilling in areas that are ice-free most of the year, and we don’t know where they can and can’t drill, and whether we can,” Clinton said, according to the KTUU account.

The implications of the new policy are especially great for the Coast Guard, which is responsible for safeguarding U.S. waters. In an interview at the National Press Club early last year, Coast Guard Commandant Thad Allen declined to discuss his views about climate change, but said, “All I know is there’s water where it didn’t use to be, and it’s my responsibility to deal with that.”

The Coast Guard’s aging fleet of icebreaking ships has long been a concern for the service. It has two 30-year-old icebreakers, one of which has been out of service for most of the last year. It also has one ship devoted to scientific research that has some ice-breaking capability.

Borgerson said the new policy gives the Coast Guard the ammunition it needs to make its case to receive funding for more icebreakers. Last year, military commanders at Pacific Command, Northern Command and Transportation Command all signed a letter to the Joint Chiefs requesting their support for the Coast Guard’s request for icebreaker funding.

Alaska Gov. Sarah Palin also has lobbied for greater Coast Guard presence in Arctic waters. In a letter to President Bush last March, she said, “At the same time as our icebreakers are hobbled by years of hard service and lack of maintenance funds, more freighters and cruise ships than ever before are traveling through the Arctic.”

Telecoms and the Bush administration talked about how to keep their surveillance program under wraps.

The Bush administration is refusing to disclose internal e-mails, letters and notes showing contacts with major telecommunications companies over how to persuade Congress to back a controversial surveillance bill, according to recently disclosed court documents.

The existence of these documents surfaced only in recent days as a result of a Freedom of Information Act lawsuit filed by a privacy group called the Electronic Frontier Foundation. The foundation (alerted to the issue in part by a NEWSWEEK story last fall) is seeking information about communications among administration officials, Congress and a battery of politically well-connected lawyers and lobbyists hired by such big telecom carriers as AT&T and Verizon. Court papers recently filed by government lawyers in the case confirm for the first time that since last fall unnamed representatives of the telecoms phoned and e-mailed administration officials to talk about ways to block more than 40 civil suits accusing the companies of privacy violations because of their participation in a secret post-9/11 surveillance program ordered by the White House.

At the time, the White House was proposing a surveillance bill – strongly backed by the telecoms – that included a sweeping provision that would grant them retroactive immunity from any lawsuits accusing the companies of wrongdoing related to the surveillance program.

Although a version of this proposal has passed the Senate, it has so far been blocked in the House by Democrats who are demanding greater public disclosure about the scope of the administration’s post-9/11 surveillance of individuals inside the United States. Negotiations between House Democrats, the Senate and administration representatives over a possible compromise have made little progress so far. Capitol Hill officials now say Congress may not get around to final action on new surveillance legislation until right before a one-year temporary law expires in August – right before the presidential nominating conventions.

The recent responses in the Electronic Frontier Foundation lawsuit provide no new information about the administration’s controversial post-9/11 electronic surveillance program itself, but they do shed some light on the degree of anxiety within the telecom industry over the litigation generated by the carriers’ participation in the secret spying. One court declaration, for example, confirms the existence of notes showing that a telecom representative called an Office of Director of National Intelligence (ODNI) lawyer last fall to talk about “various options” to block the lawsuits, including “such options as court orders and legislation.” Another declaration refers to a letter and “four fax cover sheets” exchanged between the telecoms and ODNI over the surveillance matter. Yet another discloses e-mails in which lawyers for the telecoms and the Justice Department “seek or discuss recommendations on legislative strategy.”

The declarations were filed in court by government lawyers only after U.S. Judge Jeffrey White in San Francisco, who is overseeing the case, ordered them to fully process the Electronic Frontier Foundation’s FOIA request for documents showing lobbying contacts by the telecoms. The government initially resisted even responding to the FOIA request, but White found that disclosure was in the public interest because it “may enable the public to participate meaningfully in the debate over” the pending surveillance legislation.

But while complying with the judge’s order to confirm the existence of some documents, administration officials have told the judge they cannot actually disclose the documents themselves, in part because to do so would undermine national security. Even to confirm the identity of any of the carriers with whom administration officials have discussed the surveillance issue would implicitly identify the carriers that participated in the program and therefore “would provide our adversaries with a road map” that would help them thwart surveillance against them, according to a court declaration filed by Lt. Gen. Ronald L. Burgess, director of the ODNI’s intelligence staff.

Spokesmen for the Justice Department and ODNI today declined comment to NEWSWEEK on the grounds that neither agency will talk about pending litigation.

The revelation of the existence of the documents comes at a time when Congress is bracing for what is expected to be a grueling summerlong debate over the surveillance measure. Administration officials say that unless Congress acts by this summer, existing court orders permitting surveillance of suspected overseas terrorists will expire, threatening the U.S. government’s ability to keep track of potential plots against the homeland. If new legislation is not enacted before the current stop-gap law expires, Republicans may try to use this as an election issue against Democrats.

The debate over a new surveillance authorization is likely to be complicated by figures showing sharp increases in the government’s electronic eavesdropping on U.S. citizens. One report filed with the office of the administrator of the U.S. Courts shows that standard wiretaps approved by federal and state courts jumped 20 percent last year, from 1,839 in 2006 to 2,208 in 2007. Later this week another report is expected to also show increases in secret wiretaps and break-ins approved by the Foreign Intelligence Surveillance Court (FISC) in terror and espionage cases. But even these secret wiretaps and break-ins – estimated to be about 2,300 – tell only part of the story. They don’t include other secret methods the government uses to collect personal information on U.S. citizens.

Three guys in suits came strolling down the hallway. Fred Malek, chairman and senior adviser of a District buyout group, waited for them in his corner office. One of the men was Scott Rued, a managing partner at Malek’s firm. He was with an investment banker, who was representing the third man, an owner of a logistics company that Rued coveted.

The company’s owner looked tense. Perhaps he should have been. He had started his firm in his living room, and now he was wrestling with giving it up to some men he barely knew. A few of months ago, Rued asked Malek to have breakfast with the owner to smooth the way for the man to attend the meeting that was about to happen: the initial negotiations to merge the company into one of Malek’s.

Malek, by his admission, is not entirely warm and fuzzy, but he is likable and has a knack for winning people’s trust. He could relax a mouse who was about to be eaten by a cat. In this case, he created a clubby, insider atmosphere, showing off photos from a lifetime of moving in and out of power. There’s Malek with his former executive assistant, Gen. Colin Powell. There’s Malek with his ex-boss, President Richard Nixon. There’s Malek with former president Bush, after parachuting out a plane to celebrate Bush’s 80th birthday. “Did Bush jump, too?” Rued asked. “Hell yeah,” Malek said.

More small talk ensued. Then Rued and the banker went off to another room to start their talks, which was emblematic of a reality that Malek seems perfectly comfortable with these days: He is no longer the man making the deals. At 71, he is the elder statesman — elder capitalist — of Thayer Hidden Creek. Following the restructuring of the firm several years ago after some costly missteps, Malek has firmly stepped away from the day-to-day operations, functioning as an adviser, a listening post, an emissary of deals.

“He opens doors, and he knows which ones should be opened,” said Norman Augustine, a former chief executive of Lockheed Martin who sits on Thayer’s board.

In the weeks ahead, Malek will temporarily retreat further from Thayer. He is slipping back into the political world, where he was once, in Powell’s words, Nixon’s disciplinarian and later the campaign chairman for President George H.W. Bush. He has been drawn back by an affection for Sen. John McCain (Ariz.), a fellow Vietnam War veteran with unpopular positions in the Republican party who Malek says reminds him of one of his favorite credos, which he learned at West Point: Have the courage to choose the harder right vs. the easier wrong.

Malek is a co-chairman of McCain’s campaign finance committee, an unusual position for him because he previously has served in more strategic roles. But it’s a job that fits Malek at this time in his life, in that he has come to know a lot of people with a lot of money. Asked why he thought Malek will be successful raising money, Bill Marriott, Malek’s boss when he oversaw Marriott’s hotels, said: “He has an amazing Rolodex. And when he calls people, they pick up the phone.”

After all these years, and despite some embarrassing controversies and a disheartening end in his bid to buy the Washington Nationals, Malek remains one of Washington’s ultimate insiders. The other night he had President Bush — the one living in the White House — over for a fundraising dinner at his palatial home overlooking the Potomac River in McLean, where he lives with his wife of 46 years, Marlene Malek. He is not a billionaire, but he has his own plane and a house in Aspen. He has certainly come a long way from growing up the son of a Chicago beer delivery man — a Democrat, no less.

“My parents taught me to achieve,” Malek said, sitting on the couch in his living room. “And I found the wonderful gratification that comes from achievement. The motivation to achieve and the fulfillment of achievement gives me great satisfaction.” His philosophy on work brings to mind his other favorite credo, from Bill Marriott: Success is never final.

Malek, who is wiry, fit and always well put together, graduated from West Point in 1959 and later was an airborne Army Ranger in Vietnam, completing a tour deep in the jungles. (His buyout firm and his hotel company are named after Brig. Gen. Sylvanus Thayer, known as the father of West Point.) After Vietnam, Malek got his MBA from Harvard Business School and eventually found his way into the Nixon administration, where he was a special assistant to the president and then deputy director of the Office of Management and Budget. One of Malek’s key hires was Colin Powell.

“He had a reputation of — I’ll let you characterize it — but within the bureaucracy he was the guy who the president looked to put discipline in the system,” Powell said in an interview. “Fred was a disciplinarian. He was also seen as a political operative. That’s a negative term nowadays. But it’s a positive term. The president had an agenda and wanted to make sure it was being followed. OMB is the turnstile of government. Fred was very influential.”

Malek was exceedingly loyal to Nixon. “I believed he was telling the truth until the very end,” Malek said. And it was under Nixon that Malek made what he terms the biggest mistake of his life. At the president’s order, he counted how many Jews worked in the Bureau of Labor Statistics. (Nixon was convinced that some Jewish employees of the agency weren’t loyal.) Controversy surrounding his actions forced him to resign from Bush’s campaign in 1988. Malek is remorseful about the episode and adamant that he is not an anti-Semite, just a guy who made a dumb mistake — a very big dumb mistake. He sought counsel from — and was later forgiven by — some of the world’s Jewish leaders, including Abraham Foxman, the director of the Anti-Defamation League.

“He has been very remorseful ever since,” Powell said. “But it did make it difficult for him to get back into government.”

Malek’s private sector positions and the number of deals he has made in business are almost too long to list. He worked for McKinsey & Co. He led a buyout of Northwest Airlines and CB Richard Ellis. His longest stint at any company was 14 years at Marriott International starting in the 1970s, where he rose to become president of the company’s hotel division. At Marriott, he became close with a junior executive named Lee Pillsbury, and the two later became partners in Thayer Lodging Group, an Annapolis company that owns more than a dozen hotels. Malek is still active in its day-to-day operations.

Pillsbury said that during their time at Marriott, Malek “had the most discipline of anyone I had ever met. His time management was legendary. He walked in to the office at 5 minutes to 8 and left at 5 minutes after 5, and everything was done and finished on time the way it was supposed to be.”

Nearly everyone who has worked with Malek said the precision of his actions are legendary and border on the bizarre. “When Fred tells you that he will go to the bathroom at 10, it’s not going to be 9:59 or 10:01. There is nothing too trivial for Fred to keep his word on,” Pillsbury said.

That reputation seemed to connect the owner of the logistics company to Malek. After Rued and the investment banker chatted privately, the group made its way to a conference room not far from Malek’s office. They sat at a long, shiny wooden table. Rued, the investment banker and the company’s owner took off their jackets and loosened their ties. Malek stayed buttoned up, jacket on.

Rued made a presentation about how he saw the man’s firm fitting into theirs. But the owner had questions. He had lots of questions. And he seemed hesitant, particularly about giving up total control. Malek said he understood how he felt: “It’s like jumping out of an airplane.” At one point, the man looked at Malek and said, “I want to do this with you.” Malek asked what he meant. The man said he wanted to go around the country and make nice-nice with potential customers with Malek at his side. “I want you to be you, to do your thing” the man said. Again, he repeated, “I want to do this with you.”

Malek said yes, he would help the owner build relationships with customers. “I do what I say I’m going to do,” Malek added. “That’s why I’ve been around so long.”

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This blog is about whistleblowers and the conditions and situations that happen in their lives to create their whistleblower status. This blog is intended to inform, share, and support whistleblowers and those who support them.